The Essential Guide to Handling Workplace Harassment & Discrimination

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The Essential Guide to Handling Workplace Harassment & Discrimination

Deborah C. England

September 2018, 4th Edition

Don't let harassment and discrimination claims disrupt your workplace

The Essential Guide to Handling Workplace Harassment & Discrimination is a must-have resource for managers and HR professionals who are responsible for addressing and preventing harassment and discrimination in the workplace. You will learn:

how to prevent discrimination and harassment

how to investigate employee complaints

how to protect the company from lawsuits with proper documentation, and

and much more.

Includes sample policies and forms to help you fulfill your obligations.

Product Details

Discrimination and harassment can poison the work environment, undermine employee morale, and even lead to costly investigations and lawsuits. In the era of #MeToo, it’s more important than ever to take steps to prevent harassment and discrimination, as well as appropriately respond when incidents do happen.

Armed with the information and strategies in this book, you can protect your company and employees from illegal harassment and discrimination. You’ll learn how to:

develop policies prohibiting harassment and discrimination

train employees and supervisors

handle employee complaints and investigate claims thoroughly

document your company's response

take action against wrongdoers

prevent illegal retaliation, and

respond to agency complaints, investigations, and lawsuits.

Finally, this book provides you with the support you’ll need by posting significant developments on the online legal update page.

“(Nolo’s)…material is developed by experienced attorneys who have a knack for making complicated material accessible.” - Library Journal

About the Author

Deborah England is a litigator with over 20 years of employment law experience. She has published numerous articles and essays on employment and civil rights law, and she frequently speaks on these topics before legal and HR professional organizations. England makes her home in the San Francisco Bay Area. She is the author of The Essential Guide to Handling Workplace Harassment & Discrimination and the coauthor of The Essential Guide to Family and Medical Leave.

Appendixes

A. State Laws on Discrimination and Harassment

B. Forms

Index

Sample Chapter

Chapter 1 What Is Discrimination?

You might hear the word “discrimination” used rather broadly in everyday speech. People who feel wronged may say things like, “He discriminated against me because he doesn’t like people who speak their minds” or “It’s so unfair that we have to go stand outside to smoke; this company really discriminates against smokers.”

Statements like these get at only one important aspect of discrimination: It involves making a distinction between groups of people. But, as you probably know, discrimination is illegal only when the basis for the distinction has been declared off-limits by Congress, courts, or a state or local legislature. Not every unfair or biased decision is discriminatory. For discrimination to be illegal, it must be based on a “protected category,” such as race or religion.

This chapter will cover:

laws that prohibit discrimination

what discrimination is, and

how and when discrimination might occur.

This information will help you recognize the signs of discriminatory behavior. In later chapters, you’ll learn what steps you can take to prevent discrimination and how to handle complaints of discrimination that has already taken place.

Laws Prohibiting Discrimination

Many different laws, both federal and state, protect employees from discrimination in the workplace. The most prominent federal antidiscrimination laws are:

Title VII of the Civil Rights Act of 1964 (Title VII). This law prohibits discrimination on the basis of race, color, religion, sex (including pregnancy), and national origin. Title VII applies to employers with 15 or more employees.

CAUTIONIf your company had 15 employees at any time in the last two years, Title VII may apply. Title VII applies to entities with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding year. If your company’s workforce fluctuates around 15 employees, talk with a legal adviser about whether the law applies to your company. Even if Title VII doesn’t apply, your state’s antidiscrimination laws might; state laws often apply to smaller employers. (See “State Laws Prohibiting Discrimination in Employment,” in Appendix A for more information.)

Genetic Information Nondiscrimination Act (GINA). This law prohibits discrimination on the basis of genetic information. GINA applies to employers that have 15 or more employees.

The Age Discrimination in Employment Act (ADEA). The ADEA prohibits discrimination against those age 40 or older on the basis of age.

The Americans with Disabilities Act (ADA). The ADA protects workers with disabilities from discrimination in the workplace, and it requires employers to offer reasonable accommodations to help those workers do their jobs.

The Equal Pay Act (EPA). This law is designed to ensure that men and women receive equal compensation for the same or similar work. The jobs don’t have to be exactly the same to require equal pay, but they must involve “equal work,” meaning equal skill, effort, and responsibility and similar working conditions.

The Civil Rights Act of 1866, 42 U.S.C § 1981 (Section 1981). Section 1981 prohibits discrimination on the basis of race in the making, enforcing, and performance of contracts. It also prohibits discrimination on the basis of ethnicity, if that discrimination is racial in character (for example, discrimination based on physical characteristics or skin color violates Section 1981; discrimination based on surname or accent generally doesn’t). Section 1981 applies to all contracts, including employment agreements, partnership agreements, and the like.

The Immigration Reform and Control Act (IRCA). IRCA prohibits employers with four or more employees from discriminating against individuals on the basis of citizenship, ethnicity, immigration status, or national origin in recruiting, hiring, firing, and verifying identity and authorization to work in the U.S. The law also prohibits employers from retaliating against individuals for reporting possibly discriminatory actions to the EEOC or other federal agencies.

Most states also have their own laws prohibiting employment discrimination, and many extend greater protections than federal law. For example, they may apply to smaller employers or apply to other protected classes (such as marital status or sexual orientation). Finally, some city or county ordinances may also provide additional protection.

Which Antidiscrimination Laws Apply to Your Company?

Not every antidiscrimination law applies to every employer. For the most part, whether your company has to follow these laws depends on its size and location. Federal antidiscrimination laws (listed below) apply only to employers with more than a minimum number of employees—and this minimum number is different for each law.

Name of Law:

Discrimination Prohibited on the Basis of:

Applies to:

Title VII

Race, color, national origin, religion, sex (including pregnancy)

Employers with 15 or more employees

Age Discrimination in Employment Act

Age (employees age 40 and older only)

Employers with 20 or more employees

Americans with Disabilities Act

Physical or mental disability

Employers with 15 or more employees

Equal Pay Act

Sex (applies only to wage discrimination)

All employers

Civil Rights Act of 1866 (Section 1981)

Race, ethnicity

All employers

Immigration Reform and Control Act

Citizenship status, national origin

Employers with four or more employees

Genetic Information Nondiscrimination Act

Genetic information

Employers with 15 or more employees

Common Questions

Q: We are a multistate employer, and our handbook says that we do not tolerate discrimination based on sexual orientation. An employee is now complaining of sexual orientation discrimination in a state that does not prohibit it. Do we have to do anything about it?

A: Yes. Arguably the company obligated itself, in its handbook, to protect employees from sexual orientation discrimination, regardless of where it occurs and whether it is illegal. And it’s good business practice, too. Following this policy uniformly shows the company’s sincere commitment to treating employees fairly and protecting them from discrimination no matter where they work.

What Is Discrimination?

In general, antidiscrimination laws are designed to keep an employer from making employment-related decisions that disadvantage employees based on the categories identified above (or other categories state or local governments find worthy of protection). It is illegal to discriminate when hiring, creating or applying policies, training, promoting, firing or laying off employees, or with regard to any other terms and conditions of employment.

TIPConduct may be inappropriate even if it isn’t illegal. This section explains how courts and legislatures define discrimination, including what an employee must prove in order to win a discrimination lawsuit. That doesn’t mean, however, that you should ignore any behavior or conduct that falls short of these standards. For example, a supervisor might be able to show that the younger employee he promoted was truly the best qualified candidate for the position, even if that supervisor made inappropriate ageist remarks that led an older employee to mistakenly believe that the decision was based on age. However, that still doesn’t make it acceptable for a supervisor to make biased comments. This is a situation where discipline is in order for violating company policy, even if no law has been broken. This will not only help you maintain a professional workplace, but also help you avoid expensive lawsuits. Even if the supervisor’s conduct did not violate the law, his or her ageist comments are likely to inspire the older employee to file a lawsuit. Although you may be able to eventually convince the court to dismiss the case, it will cost you plenty in time, resources, and attorneys’ fees.

Discrimination can take the following forms:

Disparate treatment. This is the textbook form of discrimination: intentionally treating people differently because of a protected characteristic. It can mean denying a job to someone because of his or her race, or giving promotions to men over equally qualified women based on gender.

Disparate impact. Conduct that is neutral on its face but affects a disproportionate number of employees in a protected class is also discriminatory. Unless the employer has a very good, job-related reason for the different treatment—for example, a strength requirement (which may disproportionately affect women) because the job regularly requires heavy lifting—the practice or policy won’t pass legal muster. Even if an employer has a valid business reason for the practice, it may still constitute discrimination if an alternative requirement exists that would not disproportionately affect the protected class.

Failure to accommodate. When an employer is legally required to accommodate an employee (such as an employee with a disability or an employee whose religious practices require a change to workplace rules) and fails to do so, this is also a form of discrimination.

Discrimination doesn’t often present itself in an extremely obvious way, like a supervisor admitting he won’t promote women, he refused to hire someone because of his or her race, or he won’t consider anyone older than 50 for certain positions. The rare occasions when something like this happens are called “smoking gun” cases because employers will have a hard time refuting such direct evidence of discrimination.

Much more often, however, an employee will have only an inkling or hunch that something isn’t right. The employee may look at several different pieces of suggestive information (called “circumstantial evidence”) and decide that discrimination is the logical conclusion. For example, an employee who claims that she didn’t receive a promotion because of her gender might present evidence that her supervisor made sexist statements shortly before denying her the promotion, offered the promotion to a man whose qualifications were not as strong, and has a history of promoting only male employees.

Lessons From the Real World

Supervisor’s sexist comments could be offered at trial as evidence of bias in layoff decisions.

Boeing laid off two women who scored low on reduction-in-force assessments. Although the trial court ruled in Boeing’s favor, the federal appeals court reversed based on evidence of sexist comments by one woman’s supervisor and circumstantial evidence that the same supervisor deliberately set a woman up to fail the assessment because of her sex. The appeals court held that a coworker’s testimony about the supervisor’s comments could lead a jury to believe that Boeing’s stated reason for termination (the poor RIF assessment scores) was not true.

EEOC v. The Boeing Co., 577 F.3d 1044 (9th Cir. 2009).

An employee can’t win a discrimination case simply by claiming that he or she experienced discrimination on the job. If an employee’s discrimination case goes to court, the employee will have to show all of the following:

The employee was qualified for the job in question. An employee or applicant can’t claim discrimination unless he or she had the necessary skills, qualifications, and experience to do the job.

The employee is a member of a protected class. Although this may seem like a fairly straightforward requirement to meet, that isn’t always the case. For example, an employee who claims discrimination based on religion will have to show that the religious belief in question is “sincerely held.”

The employee or applicant suffered an adverse action. It isn’t enough for an employee to claim that someone is prejudiced toward, or holds particular beliefs about, certain groups of people. The employee must also show that his or her job was affected negatively by these biased beliefs. For example, a female employee couldn’t sue simply because her manager is a member of a private, male-only golf club; she would have to show that she suffered a negative employment action based on her gender.

There’s some reason to suspect that the employer had an improper motive. Essentially, it’s up to the employee to show that there is some connection between his or her membership in a protected class and the adverse action the employer took. In other words, an employee who is fired and happens to be African American doesn’t have a legal claim; an employee who is fired because he is African American does. One exception: an employee claiming a violation of the Equal Pay Act (EPA) does not have to prove that the employer intended to discriminate based on gender. If your company pays men and women differently for the same or a substantially equal job, it has violated the EPA.

Even if the employee can prove these elements, the employer has the opportunity to show that it took the job action for a legitimate business reason. For example, you could show that you didn’t hire a qualified applicant in a protected class because another applicant was more qualified. If you’re able to do that, the employee will have to show that your rationale wasn’t the real reason for the action (in legal terms, that it was just a “pretext” for discrimination). For example, if you claim that you never promote anyone with fewer than two years of experience, and an employee bringing a gender discrimination case shows that several men with less experience were promoted, that might be proof of pretext.

Being a Jerk Isn’t Illegal

Not every type of discrimination is illegal discrimination. Differences in personality, temperament, and taste can lead to friction in the workplace. If unfair treatment arises out of a personality dispute that is not based on membership in a protected class, it is not illegal. That means the “undiscriminating jerk”—the manager who treats everyone badly—isn’t discriminating illegally if he’s mean to everyone just because he’s, well, mean. Even obvious favoritism or bias, such as refusing to hire fans of a particular baseball team, isn’t illegal as long as it isn’t actually based on race, gender, or some other protected status.

Of course, that doesn’t mean the company has to put up with obnoxious behavior and foolish rationales for employment decisions. After all, it can affect employee morale and productivity. You’ll probably want to put a stop to it; even though the company shouldn’t risk legal liability for it, it’s hardly conducive to a good work environment.

Also, be aware that many states have enacted laws prohibiting bullying. If an employee’s conduct is not discriminatory but fits your state’s definition of bullying, your company might be liable under state law for not taking action to address and prevent that conduct. Check with an employment attorney in your state to find out if any anti-bullying laws apply.

Sex-Based Discrimination

Sex discrimination means making decisions based on sex or adopting policies that appear to be neutral but disproportionately affect one gender. An employer discriminates when it gives men the plum assignments or gives women more paid leave than men, for example. Sexual harassment is also a type of sex discrimination, as explained in Chapter 2.

But there are more subtle ways to discriminate based on sex, too. Here are some other forms sex discrimination may take.

Sexual Stereotyping

Sexual stereotyping, that is, holding men and women to different standards based on historic or traditional sex roles, is also sex-based discrimination. In one famous case, a female manager in an accounting firm was denied promotion to partner due to her “interpersonal skills,” among other reasons. The partners making the decision wanted her to walk, talk, and dress more femininely and to wear makeup and jewelry. The Supreme Court recognized that this challenge to her “interpersonal skills” and appearance was really just another way of saying she didn’t conform to the partners’ stereotypes of how a woman should look and act, which is sex discrimination.

Common Questions

Q:An employee complained that her supervisor always gives lead projects to men. When I asked the supervisor about it, he told me that it’s because he happens to be more comfortable working with the men in the department. He doesn’t mean to discriminate; it’s just a personality issue. Is this discrimination?

A: Most likely, yes. Discrimination doesn’t have to be a series of calculated decisions intended to harm one group of people: It just means treating people in the same situation differently because of a protected characteristic. The supervisor’s personal comfort level with the men who report to him doesn’t justify giving them the lead assignments. It looks like his personal preference is clouding his professional judgment, and female employees are suffering as a result. Whether or not gender is playing any role in his decisions—that is, whether he is comfortable only around men generally or he just happens to be more comfortable with these particular fellows—this situation needs to change.

Dress Codes

In most cultures, including ours, men and women traditionally dress and appear differently from one another. For example, it is customary for women to wear skirts, but not men. Courts have generally allowed dress codes or grooming standards that recognize these social differences, but not if such codes impose a greater burden on one gender or the other. For example, it is probably okay to have a rule that men can’t wear their hair longer than collar length. But a rule that requires only female employees to wear uniforms is likely illegal, as it imposes a greater burden on women.

CAUTIONDress codes can cause problems if they impose a greater burden on members of a different protected class.For example, “no-beard” policies may be illegal as applied to African American males who suffer from pseudofolliculitis barbae, a painful skin condition caused by shaving. So, your company may have to make an exception for these employees if it has such a policy.

Favoring a Paramour

Everyone is affected in an environment where the boss dates a subordinate. It can quickly create feelings of distrust and discomfort and, worse, it can put the company at legal risk.

As explained in Chapter 2, workplace relationships can lead to claims of sexual harassment, particularly if the relationship ends or one person has less power at work than the other. These relationships can also lead to claims of discrimination where, for example, a supervisor gives her boyfriend better work assignments than she gives his peers. While a court may not find the existence of a relationship alone to be illegal discrimination (because everyone not in the relationship is equally affected, men and women alike), it’s not a risk worth taking—and it’s a bad business practice. No one wants to believe a relationship with a supervisor or manager is a prerequisite to professional success. If you allow this type of behavior to happen in your company, you will likely face high turnover and general feelings of dissatisfaction. For more information on handling workplace relationships, see Chapter 2.

Lessons From the Real World

Employee who was fired after dating a coworker could proceed with her lawsuit.

It is a bad idea to punish a paramour to ease workplace tensions. Hyannis Air Service fired pilot Tiffany Ann Nicholson after it came to light that she had a prior relationship with one of the male pilots and was rumored to be involved with another. The federal appeals court reversed a trial court ruling for Hyannis Air Service and held that Nicholson was entitled to a trial on her discrimination claim.

Nicholson v. Hyannis Air Service, 580 F.3d 1116 (9th Cir. 2009).

Unequal Pay

Paying men and women different wages or salaries for the same or a substantially equal job is a violation of the federal EPA. As noted earlier in this chapter, an employee claiming she was paid less than a man for the same job does not have to prove that her employer intended to discriminate; if she shows a wage differential, the employer is liable for violating the EPA. Basing an employee’s pay rate at the time of hiring on earnings history at prior jobs, while a common practice, can lead to problems. Certain courts have held that employers may rely on such information when setting pay at hire without violating the EPA, but some states, including California, prohibit employers from using earnings histories at prior employers as a justification for paying men and women differently for the same job.

Pregnancy Discrimination

Treating employees differently on the basis of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth (including abortion) is also prohibited, sex-based discrimination. This doesn’t mean the employee must be pregnant to be protected, however. For example, a federal court recently allowed a pregnancy-based lawsuit to proceed when an employee alleged she was fired because she was undergoing in vitro fertilization to try to become pregnant.

If an employee is temporarily unable to work due to pregnancy you must treat her just as you would any other employee who is in a similar position in his or her ability or inability to work. Put another way, you should treat pregnant employees as you would any other employee with a temporary disability. If you’d give an injured employee a flexible schedule to attend medical appointments, for example, do the same for pregnant employees.

CAUTIONEmployers may have to accommodate pregnant employees under state law or the ADA. Many states have laws that grant additional leave and accommodation rights to pregnant employees, beyond what federal law requires. And, if a pregnant employee has a disabling condition related to her pregnancy, you may have a duty to provide reasonable accommodation under the Americans with Disabilities Act (ADA) or similar state disability laws.

Common Questions

Q: I have a pregnant salesperson whose job requires her to travel a lot. She’s had a lot of complications in the pregnancy, and I am worried about whether it’s safe for her to travel. I have an administrative position opening up—she won’t make commissions anymore, but at least she’ll be close to home and she won’t have to take any unnecessary risks. Can I offer her the position?

A: You can offer her the position, but you can’t require her to take it. Even though your intentions are good, forcing the employee to take the position would be discriminatory. Because the position you want her to take sounds like it pays less and is less prestigious, requiring her to take it would be demoting her because she’s pregnant, a clear violation of the law. It’s up to the employee and her medical care provider to decide whether she’s able to continue traveling.

Breast-Feeding Accommodation

The federal health care reform law (and some state laws) requires certain employers to provide breaks for women who need to breast-feed or express breast milk. The federal law requires employers to provide a private area, other than a restroom, for nursing women to express breast milk. These employers must allow nursing women to take reasonable breaks for that purpose for up to one year after the birth. Employers with fewer than 50 employees are not subject to the requirement if it would impose an undue hardship by causing significant difficulty or expense relative to size, financial resources, nature, or structure of the business. (29 U.S.C. § 207 (r).)

In addition, many states have their own laws requiring employers to provide breaks for nursing women, some of which offer greater protections to new mothers. See Appendix A at the end of this book for a summary of state laws on breast-feeding breaks.

Sexual Orientation Discrimination

Federal law doesn’t explicitly prohibit discrimination based on sexual orientation in private employment. However, many states do offer this explicit protection. (See Appendix A for information on the law in your state.)

Federal laws do, however, prohibit discrimination based on sex stereotyping, as discussed above. So, treating people differently because they fail to live up to gender norms—for example, because a man acts effeminately or a woman acts macho—can be illegal sex discrimination.

Gender Identity Discrimination

In recent years, many states and local governments have begun to include “gender identity” in their lists of protected classes. Gender identity refers to one’s self-identified gender, as opposed to one’s anatomical gender at birth. (See the chart in Appendix A for the rule in your state.) An employee need not have undergone sex reassignment surgery to be protected by these laws.

To date, federal law does not explicitly protect employees from gender identity discrimination. However, the EEOC—the agency that interprets and enforces federal antidiscrimination laws—has ruled that Title VII’s prohibition of sex discrimination also bars discrimination on the basis of gender identity and transgender status. And, as noted above, employers can’t discriminate based on stereotypes about how men and women should behave, which could include holding employees to stereotypes of their anatomical gender.

The EEOC has taken a proactive role in putting a stop to transgender discrimination. In 2014, the EEOC filed lawsuits against two employers alleging that they had discriminated against transgender employees in violation of Title VII’s prohibition against sex discrimination. These were the first lawsuits ever filed by the EEOC on behalf of transgender employees. One case settled in April of 2015, with the Florida employer agreeing to pay $150,000 to the transgender employee. In the other lawsuit, against a Michigan employer, the Sixth Circuit ruled in favor of the transgender employee (reversing the district court’s dismissal of the case) and sent the case back to the district court for further proceedings.

Common Questions

Q: Our bookkeeper, Jim, just announced that he is undergoing a sex change transition, wants to be called Jamie, and insists on being treated as female from now on. He’s just started the medical transition and won’t be finished for many months or longer. It’s a big hassle to change all our records, figure out bathroom arrangements, and make sure Jim’s coworkers and supervisor are handling this in a way that doesn’t offend him. Can’t we treat him like a man until he isn’t one anymore?

A: Definitely not. Part of Jim/Jamie’s transition is living as a woman, the gender with which she identifies. It’s no more of a burden for your company to change Jamie’s records than to add new employees or adjust records to reflect changes for other employees. Demanding that you be allowed to treat Jamie “like a man” could be considered gender stereotyping and may also violate your state law if it protects against gender identity discrimination.

Race Discrimination

Race discrimination occurs when an employer makes a job decision based on an employee’s race or adopts a policy that appears neutral, but disproportionately affects members of a certain race. For example, in the first Supreme Court case to establish the concept of “disparate impact,” an employer required laborers to have a high school diploma. This rule disproportionately screened out African American employees. Even if the employer’s intent wasn’t to discriminate, the policy had this effect. Employers with policies that have a disproportionate impact on members of a protected class must be able to show that there is an important work-related reason for the requirement. In this case, it was difficult for the employer to show that a high school diploma was necessary for the job of laborer.

Common Questions

Q: I’m the HR manager at a garbage collection company, and we conduct background checks on all applicants, including getting credit information. Recently, the company rejected an applicant for a driver position after learning that he had bad credit (due to some late credit card payments). He’s African American and was otherwise qualified for the job. I’m convinced his race had nothing to do with the rejection, but he filed a charge of discrimination with the state human rights commission. Are we at risk?

A: Maybe. Credit report information, while neutral on its face, could have a disproportionate negative impact on African American applicants, as the U.S. Supreme Court has recognized. And your company will have a hard time showing that an individual’s credit report is necessary to being a garbage truck driver. Better to drop the practice and avoid the problem.

National Origin and Citizenship Status

Under Title VII, employers are prohibited from discriminating on the basis of national origin (also sometimes called ancestry). National origin refers to the country in which someone was born, where his or her ancestors came from, or the ethnic group to which he or she belongs. It does not have to refer to a country. Citizenship in another country is not in and of itself a protected status.

The Immigration Reform and Control Act of 1986 (IRCA) bans discrimination based on national origin and citizenship by any employer with four or more employees or by any employer not covered by Title VII, such as those employing seasonal workers. All employees who are authorized to work in the United States (such as those holding valid “green cards”) are protected by this provision. Employers may legally choose to hire a U.S. citizen rather than an equally qualified lawful permanent resident. However, employers may not choose a U.S. citizen over an equally qualified lawful permanent resident for termination. And, an employer may not have a blanket policy of always selecting U.S. citizens over qualified, lawful permanent residents or others who are authorized to work in this country.

English-Only Rules

Some employers would like to require that everyone in the workplace speak English. Unless they’re necessary for a job, however, these English-only rules are illegally discriminatory. If there is a business necessity for the rule—speaking only English to English-speaking customers, for example—and employees have advance notice of it, such a rule is usually allowed. But rules that are unnecessarily restrictive (not allowing employees to speak their native languages on their breaks, for example) can cause problems.

Common Questions

Q: An employee in our accounting department is excellent at what he does, but has a very thick accent that makes it difficult for people to understand him. This isn’t usually a problem, except when he has to give a presentation at the monthly manager’s meeting. Would it be discriminatory to demote him to a junior position that doesn’t require the presentations?

A: In all likelihood, yes. Discriminating against someone because of an accent can be considered national origin discrimination.

That doesn’t mean you can never take an adverse action against an employee because an accent affects his or her work. When an accent materially interferes with an employee’s job performance, it isn’t discriminatory to take appropriate action. But it doesn’t seem that you would meet that standard here. The employee’s accent doesn’t interfere with his primary job tasks; it only interferes with his ability to communicate at a monthly meeting, and there might be other solutions that can overcome this. For example, consider asking the employee to bring handouts to the meetings or to prepare presentation materials that communicate the bulk of relevant information, so that others can read along as he speaks.

Besides the possible legal risks if you demote the employee, you risk losing a high performer who might soon look for a job elsewhere. Replacing a competent employee could prove much more costly than trying to find a solution to the situation you’re currently in.

Age-Based Discrimination

The ADEA protects employees age 40 and over from age-based discrimination. It is illegal for employers to discriminate against employees who are 40 and older in favor of employees who are under 40. It is also illegal for employers to favor younger members of the protected class over older members, based on age. For example, it’s illegal to hire a candidate who is 45 years old instead of an equally qualified candidate who’s 65, based on age.

CAUTIONState laws may expand protections beyond those granted by federal law. Some states prohibit age discrimination by smaller employers than those covered by federal law. And, some states even extend age discrimination protections to employees who are under 40.

Common Questions

Q: We recently promoted a younger employee into a more senior technical position that requires detailed knowledge of a computer application he learned in college. An older coworker has worked at the company for years and says he should have been offered training in the application; if he had been, he claims he would have been the best choice for the promotion. He says this is age-based discrimination. Is it?

A: It doesn’t sound like it. The company cannot make decisions based on a person’s age, but can make decisions based on a person’s qualifications. Here, the younger applicant was more qualified. While there’s certainly nothing to prevent you from offering specialized training to help promote a current employee, you’re not legally required to do so (of course, you can’t offer the training only to younger workers). And there’s nothing to prevent the older employee from seeking that training himself, to increase his career opportunities.

One part of the ADEA regulates benefits offered to older employees. The Older Workers Benefit Protection Act (OWBPA) prohibits employers from denying benefits to workers age 40 and over. Because it costs more to provide certain benefits to older workers, the OWBPA does permit employers to reduce benefits based on age as long as the cost of providing the benefit to older workers is the same as the cost of providing the unreduced benefit to younger workers. However, this defense applies only to certain benefits and only in certain situations.

SEE AN EXPERTThe OWBPA also regulates the waiver and release of age discrimination claims by employees 40 and older. A release that doesn’t meet these requirements is not valid, and your company can’t enforce it. Whenever your company wants to secure a release from any employee, consult with an employment attorney to make sure the release satisfies the OWBPA requirements.

Religious Discrimination

Title VII also protects employees from discrimination based on their religious beliefs. Discrimination based on religion occurs when an employer treats an employee differently, based on religion, or takes action that disproportionately affects employees of a particular religious faith. Discrimination against employees because they don’t adhere to a particular, or any, religious faith is also illegal.

Common Questions

Q: An employee who describes himself as an evangelical Christian approaches coworkers on breaks to discuss his and their religious beliefs. A couple of employees told their supervisors they’re offended. I know we’re not supposed to interfere with his religious beliefs, but he’s bothering other employees—what about their beliefs?

A: You aren’t legally required to put up with conduct that offends employees or disrupts the workplace simply because the offending employee’s conduct is part of a religious practice. But you do need to examine whether his religious practice can be accommodated in some way that doesn’t impose a hardship on your company and its other employees. For example, you could propose that he advise his coworkers that they can come to him to discuss religion during breaks, away from their workspaces. This would permit him to engage in his religious practice but would also prevent him from confronting other employees about religion if it offends them.

An employee’s religious beliefs don’t have to be associated with a mainstream religion, such as Islam or Catholicism. According to the EEOC, a belief is protected if it is “‘religious’ in the person’s own scheme of things.” So long as the belief is “sincere and meaningful,” occupies a place in the believer’s life “parallel to that filled by … God,” and concerns ultimate issues of life, purpose, and death, it is irrelevant that it may not be affiliated with any particular religious group.

Reasonable Accommodations

Under Title VII, an employer has a duty to accommodate an employee’s religious practices and observances, as long as doing so doesn’t create an undue hardship. An undue hardship means an accommodation that imposes more than a “de minimis,” or very slight, burden on the employer. For example, an employer might be required to relax a uniform requirement if doing so wouldn’t affect the employee’s safety and ability to do the job.

Common Questions

Q: One of my employees recently told me that her religion requires a vegan, not just vegetarian, diet. When the company orders food for working lunches, she wants a vegan option included. Do we have to comply with this request?

A: Whether you must provide such a meal depends on two things: (1) whether her diet is practiced as part of a sincerely held religious belief, and (2) whether her request for a vegan meal is reasonable and doesn’t create an undue hardship for you. If you doubt that her beliefs are sincere or that they are truly religious in nature, you are allowed to ask her for further information that substantiates the practice. For example, if she had decided to become a vegan for health or ethical reasons, rather than because of her religion, you probably don’t need to accommodate her request.

The more common question most employers have is whether the request accommodation is reasonable. If it’s going to create an undue hardship for the company, you do not have to agree to it. But the cost of an occasional single, vegan meal probably doesn’t qualify. Your best bet is to provide the meal; it will protect you legally, and the employee will appreciate it.

The EEOC advises employers to “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” But, if an employee requests a religious accommodation that you have an objective basis for questioning, either as to its religious nature or the sincerity of a particular belief or practice, you may ask the employee for additional supporting information.

Lessons From the Real World

A cashier’s insistence on wearing facial jewelry for religious reasons imposed an undue hardship on her employer.

Three years after being hired by Costco, Kimberly Cloutier began wearing an eyebrow ring. The next year, Costco modified its dress code to prohibit all facial jewelry. Cloutier protested, claiming that her eyebrow piercing was part of her religious belief as a member of the Church of Body Modification, which requires that members display piercings at all times.

After firing Cloutier for refusing to comply with the dress code, Costco offered to let her return if she would cover the piercing with a Band-Aid while at work, an accommodation that Cloutier herself had earlier suggested. Cloutier refused.

The court noted that the accommodation offered by Costco was reasonable, which Cloutier had essentially conceded when she offered it originally herself. The court held that Costco had a legitimate interest in its public image and that exempting Cloutier from the dress code would have imposed an undue burden on the company.

Cloutier v. Costco Wholesale Corp. 390 F.3d 126 (1st Cir. 2004).

Exceptions for Religious Employers

There is an exception to Title VII for religious entities, which may limit employment “connected with carrying on its activities” to members of its own faith. In 2012, the U.S. Supreme Court decided that Title VII also includes a “ministerial exception” for religious employers. The Court ruled that the First Amendment bars employment discrimination lawsuits by employees terminated from ministerial positions with religious organizations. The Court’s rationale was that requiring a religious employer to keep an unwanted minister to preach its beliefs would constitute government intrusion into church administration, in violation of the Constitution.

Discrimination Based on Disability

Under the Americans with Disabilities Act (ADA), an employer cannot discriminate against a qualified employee with a disability. A qualified worker is someone who is able to perform the essential functions of the job in question, with or without reasonable accommodation.

Person With a Disability

Under regulations promulgated by the EEOC, which enforces the ADA, an employee has a disability if he or she has a mental or physical impairment that “substantially limits a major life activity” (such as seeing, hearing, breathing, sleeping, reading, standing, sitting, walking, thinking, or learning). A major life activity also includes major bodily functions (such as immune, neurological, digestive, respiratory, eliminatory, and circulatory functions). A major life activity is substantially limited even if the limitation can be mitigated or corrected with medicine or devices (such as diabetes is by insulin treatments).

Employees are also protected if they have a history of such an impairment, or if the employer regards the worker—even incorrectly—as having a disability. So, for example, an employee diagnosed with epilepsy has a history of that impairment, even if the employee hasn’t had an epileptic seizure in several years. And, an employee who is openly gay and is treated differently by an employer who wrongly assumes that he is HIV positive faces discrimination because the employer regards him as having a disability.

Lessons From the Real World

Employer who didn’t know about an employee’s disability when it fired him for recurrent absenteeism did not violate the ADA.

Antonio Alamillo worked as a locomotive engineer for BNSF Railway. He worked on the “extra board,” which required employees to go to work only when called. During the time he was employed, Alamillo missed several calls from BNSF to report for work. After suspending Alamillo twice for absenteeism, the company terminated him. Following the termination, Alamillo received a diagnosis of obstructive sleep apnea, which might have caused him to oversleep and miss work. Alamillo sued BNSF for disability discrimination.

However, the Ninth Circuit Court of Appeals affirmed the district court’s granting of BNSF’s motion for summary judgment, finding that the company did not violate the law because it did not know about Alamillo’s condition when it terminated him.

Alamillo v. BNSF Ry. Co., 869 F.3d 916 (9th Cir. 2017).

Otherwise Qualified

Only qualified people with disabilities are protected under the state and federal laws prohibiting disability discrimination. A person is qualified if he or she has the qualifications for the job in question and is able to perform the essential functions of that job with or without accommodation (discussed below). So, the employee has to meet the employer’s requirements for the job, including education, skill level, experience, and other merit-based standards. And, the employee must be able to perform the job’s basic duties and requirements. As discussed below, if the employee can meet these standards only with an accommodation, the employee is still qualified for the job.

Common Questions

Q: I recently interviewed a candidate for the “Action News” videographer job at Channel 2 News here in our city. The candidate told me that he’d recently had a “very close call” while on a heli-ski trip and, as a result of his stress from this scare, he is “disabled” from flying in helicopters. Our Action News video feeds are sent live from our chopper as it flies over the city, checking out calls to the police and fire departments, high-speed chases, etc. The candidate asked very insistently that we accommodate him by letting him work a camera in the studio or live on location on the ground. The problem is that we don’t have any openings in either of those positions. Could he make us hire him?

A: No. Flying in a helicopter is not a major life activity, and he’s only limited from performing the particular job of in-air videographer. There are very few jobs that actually require an employee to fly in a helicopter—although yours sounds like one of them—so he’s not prevented from working more broadly. Thus, his condition is not a disability under the ADA. (Check with your company lawyer to see if state law has a broader definition of disability than the ADA.)

Even if his condition qualifies as a disability, it prevents him from performing an essential job function: flying in a helicopter. Therefore, he likely isn’t qualified for the job, as defined by the ADA.

Reasonable Accommodation

A reasonable accommodation is a measure that would enable an employee with a disability to do the job in question. Reasonable accommodations can include things like adjusting work hours, installing access ramps, providing special furniture or other work equipment, providing voice-activated software, or providing qualified readers. A requested accommodation is unreasonable if it imposes an undue hardship on the employer, as discussed below.

Lessons From the Real World:

A single failure to accommodate leads to victory for an employee.

An Albertsons checkout clerk had cancer of the larynx. As a result of radiation treatment, the clerk suffered from a very dry mouth and drank a lot of water. As a result, the clerk needed to take frequent bathroom breaks, which Albertsons knew about and had agreed to allow after engaging in the interactive process with the employee. One night, the floor lead, who did not know of the accommodation, denied the clerk’s request for a break, and the clerk urinated on herself at the check-out stand. A jury awarded the clerk $200,000 for the failure to accommodate her disability, and an appellate court upheld the verdict.

A.M. v. Albertsons, LLC, 178 Cal.App.4th 455 (2009).

Common Questions

Q: Our company has a strict policy against employees eating at their desks. An employee who was recently diagnosed with Type 2 diabetes has asked that he be allowed to snack at his desk to keep his blood sugar stable. This seems like a reasonable request, but my boss is worried about other employees demanding to be allowed to eat at their desks. Will we have a problem if we bend the rules for this one employee?

A: No. You are not bending the rules; you are following the law. As long as the employee meets the definition of a qualified employee with a disability (and it sounds like he does), this is a reasonable accommodation. Unless they require a similar accommodation, other employees are not entitled to a waiver of your company’s rule. As an alternative, you may prefer to give the employee permission to leave his desk to snack in private. And you shouldn’t explain the reason for the different treatment to other employees; the information is confidential medical information that you aren’t allowed to reveal to people who don’t need to know it.

CAUTIONPhysical capacity tests violate the ADA. When the accommodation an employee needs includes time off from work, some employers have required returning employees to take physical capacity tests upon returning from leave. While your company may wish to make sure that an employee can perform physical aspects of his or her job after returning from an ADA leave, some courts have viewed such tests as medical examinations, which violate the ADA. Your company is, however, allowed to ask the employee to provide a fitness for duty certification from his or her doctor, stating that the employee is able to return to work.

Lessons From the Real World:

Employer who terminated an employee returning from maternity leave because she failed a physical strength test had to produce names, other “pedigree information,” and reasons for firing other employees whom it made take the strength test.

Damina Ochoa worked as a cigarette selector for McLane Company. Ochoa took maternity leave and, when she tried to return to work afterward, McLane made her take a physical strength test. After she failed the test, McLane fired her and she filed a claim with the EEOC for pregnancy discrimination. During the EEOC investigation, the EEOC subpoenaed McLane’s records of employees whom McLane required to take the test. McLane produced some information, but not the names, phone numbers, addresses, and other “pedigree information” (such as the employees’ Social Security numbers) nor the reasons for termination of those fired after taking the test.

The EEOC went to court to ask that the subpoena be enforced but the district court denied this request. The EEOC appealed the case all the way up to the U.S. Supreme Court, which sent it back to the Ninth Circuit. The Ninth Circuit Court of Appeals then ruled that the lower court had erred in denying enforcement of the subpoena, thus forcing McLane to produce the full information.

U.S. E.E.O.C. v. McLane Company, Inc., 857 F.3d 813 (9th Cir. 2017).

Undue Hardship

An employer does not have to provide an accommodation if doing so would create an undue hardship. An undue hardship means significant difficulty, disruption, or expense to the employer.

Whether a needed accommodation is an undue hardship depends on several factors, including the cost of the accommodation, the employer’s ability to absorb the cost, the impact of the accommodation on the worksite, the size of the employer, and the type of business. For example, a change that might be reasonable and inexpensive for a large employer might be completely impossible for a small employer.

Genetic Discrimination

Federal law bars discrimination on the basis of an individual’s genetic information. The Genetic Information Nondiscrimination Act (GINA) prohibits employment discrimination based on an individual’s genetic tests, genetic tests of family members, or the manifestation of a disease or disorder in an individual’s family members. GINA is not limited to discrimination based on the medical condition of blood relatives; it also includes adoptive children and spouses.

Many states also have statutes that prohibit genetic discrimination, and some of these laws provide more protection for employees than GINA does.

In order to comply with GINA (and any applicable state laws), an employer should:

Make sure that company policies prohibit the gathering, use, and disclosure of genetic information.

Make sure that employee genetic and medical information is maintained in confidential files, completely separate from other employee records, and that access to genetic and medical information is strictly limited to only those who are authorized. Most importantly, ensure that managers, supervisors, and others with authority to make decisions about employees’ terms of employment do not have access to such information.

Include language on forms for employee medical care providers (such as those issued for ADA or FMLA leave requests) warning the providers not to disclose genetic information on the forms. (You can find suggested language at the EEOC’s website, www.eeoc.gov; under the Employers tab, choose “Genetic Information,” then “Questions and Answers for Small Businesses: EEOC Final Rule.”)

Train managers and supervisors on what questions not to ask, what information not to seek, and what not to do on social networking or other sites in order to avoid learning genetic information.

Make sure any company wellness or other programs do not inadvertently or otherwise violate GINA.

When and How Discrimination Occurs

Discrimination has the potential to taint any stage of employment. This section discusses some of the key points in the employment relationship where discrimination commonly occurs. Chapters 3 and 4 cover the steps you can take at each juncture to prevent it.

Hiring

Discrimination can occur even before the employment relationship has officially begun. Claims brought by applicants alleging that they were discriminated against in the hiring process are relatively uncommon, perhaps because applicants typically don’t know who else was in the running or even who ultimately got the job. But, if you give an applicant reason to think that a protected characteristic played a role in your decision, through job postings, interview questions, or otherwise, you could run into some problems. Here are several ways employers, sometimes unknowingly, can create legal liability for themselves in the hiring process:

Advertisements. Language in job descriptions, postings, and advertisements can violate the law. Usually, employers get into trouble by using words that are really codes for certain protected classes, or by including criteria that aren’t necessary for the job but that screen out people in a protected class disproportionately (for example, a height requirement for a bus driver, which could screen out women or Asian or Latino men but isn’t really a requirement to do the job).

Common Questions

Q: I handle hiring for a national pop music publication. We need to hire a photographer. Our CEO has instructed me to post the job on a few websites using the language “recent graduates preferred.” I’m a little uneasy about this wording, but he says he just wants to be sure we draw applicants who will “fit in” with the musicians and fans they’ll be photographing. Should I push for a rewording?

A: Yes. The term “recent graduates preferred” violates the ADEA (29 C.F.R. § 1625.4). Instead, the ad should emphasize the skills you’re looking for—it doesn’t matter what age the person is, if he or she has those skills. (And perhaps you can gently remind the CEO that preeminent rock photographer Annie Leibowitz is hardly a “tween.”)

Applications. Employers can also cause problems by asking inappropriate questions in their job applications. Applications that ask about an employee’s gender, age, disability, or other protected status may seem benign to you, but they raise red flags about whether you are making hiring decisions based on these impermissible factors. For example, it’s appropriate for an application to ask for confirmation that a person is 18 years of age or older because employees who are not adults are subject to child labor restrictions. But asking for the applicant’s date of birth is not appropriate, because it means you have information that could allow you to make a decision about a person based on age.

Screening. Applications should be screened based on the applicant’s ability to do the job. It’s important not to focus on protected class information to draw conclusions about an applicant’s suitability for the job—even information voluntarily supplied by the applicant, such as membership in clubs or organizations that suggest membership in a protected class.

Testing. While job-related skills’ testing is permissible, testing that doesn’t serve a job-related function or that is required only of certain applicants raises suspicion. For example, if a company requires only applicants with foreign-sounding surnames to submit a writing sample or requires only applicants with obvious disabilities to show how they would perform the job’s requirements, that would be discriminatory.

We hope you enjoyed this sample of Chapter 1 of The Essential Guide to Handling Workplace Harassment & Discrimination. To finish reading this chapter, please purchase the book.

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